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Posted at: Nov 16, 2015, 12:36 AM; last updated: Nov 15, 2015, 9:54 PM (IST)

AFSPA made dirtier by the judiciary

Suhas Chakma
The situation in Garo Hills might indeed be a fit case for the imposition of AFSPA but it is simply not for the judges to take a call. The recent order by the Meghalaya High Court is a transgression by the judiciary into the domain of the executive.
AFSPA made dirtier by the judiciary
A signature campaign for repealing the AFSPA underway in Guwahati. Such a draconian provsion has no place in a country governed by the rule of law. PTI
The full bench of the Meghalaya High Court, comprising Chief Justice Uma Nath Singh, Justice TNK Singh and Justice SR Sen, in an order dated November 2, 2015, while hearing a case relating to bandhs called by the insurgents in the Garo Hills, directed “the Central Government to consider the use of Armed Forces (Special Powers) Act, 1958 (AFSPA) in the Garo Hills area and deployment of Armed and Para-military forces to control the situation in the aid of but certainly not under the command of civil and police authorities till life becomes normal and the incidents of rampant kidnapping and killing are totally stopped”. 
 
The court also directed the Union Home Secretary and the Defence Secretary to ensure compliance with the order and report to the Court during the next hearing. It further directed the Principal Secretary in the office of the Prime Minister to place the order before the Prime Minister for perusal and consideration. The court sought to justify its order, inter alia, on the ground that insurgents had abducted 87 people in the past 10 months and further stated that “even under the ideal federal system of United States of America, whereas ours is only quasi federal, under the Insurrection Act, the President can deploy Armed Forces under certain circumstances including terrorist activities in the states”. The order is bad in law, grounds are fallacious, and it is nothing but an illegal transgression into the domain of the executive by the judiciary. Under Section 3 of the AFSPA, it is only the Governor of the state or the Administrator of the Union Territory or the Central Government who can declare the whole or such part of such state or Union Territory to be a disturbed area, but the Meghalaya High Court took up the task of the Governor upon itself. There is only one Government of India and the law and order falls under the domain of the Ministry of Home Affairs (MHA). Therefore, the direction to place the order before the Prime Minister is an overzealous act, indicting the MHA and the Ministry of Defence. 
 
If crime statistics are to be the yardstick, there is no doubt that the situation in the Bastar region of Chhattisgarh, afflicted by the Naxalites, is worse than the Garo Hills. Does that mean that the Chhattisgarh High Court or the Supreme Court should direct imposition of emergency under Article 356 of the Constitution in Chhattisgarh? The assertion that the United States is the “ideal federal system” is a debatable issue. The Swiss consider their federal system, under which each Canton/province has the power to seek referendum before imposition of any law or policy, as the most ideal. Under the United States' Insurrection Act, the President of the US is authorised to deploy the armed forces under certain circumstances, including terrorist activities in the states, but the Supreme Court of the United States is not authorised to direct the President of the United States in which situations he/she should deploy the armed forces. The AFSPA authorises the Government of India to deploy armed forces but unlike the Supreme Court of the United States, the Meghalaya High Court went to direct the Government of India to impose AFSPA in the Garo Hills.
 
That the AFSPA has no place in a country governed by the rule of law requires little introduction. The judiciary has made it dirtier. The Supreme Court in its judgement dated November 27, 1997, in the case of the Naga Peoples’ Movement for Human Rights vs Union of India, while upholding the constitutional validity of the AFSPA sanctified provisions which are in clear violation of the Constitution. First, it was with respect to the powers of the Governor vis-a-vis the council of ministers with respect to imposition of the AFSPA under Section 3 of the Act. Even though the Governor under the Constitution discharges duties on the aid and advice of the council of ministers, the Supreme Court held that the Governor is empowered to impose the AFSPA without the aid and advice of the council of ministers. The special law was allowed to prevail over the Constitution. This has created a piquant situation. In many states, the AFSPA was imposed by the Governors against and/or without the advice of the council of ministers of the concerned state. With respect to Arunachal Pradesh, the Union Home Ministry was forced to withdraw the imposition of the AFSPA in all the districts in May, 2015. During the same month, the AFSPA was withdrawn from Tripura on the advice of the council of ministers. Second, in the areas declared disturbed under the AFSPA, the Supreme Court held that the central armed forces are not required to operate under the control of the state security forces while performing duties in aid of civil power of the state. 
 
The Supreme Court relied upon the Entry 2A of the Union List of the Constitution, that is, “deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any state in aid of the civil power, powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment”. However, Entry 2A of the Union List makes no distinction between states covered under the AFSPA and those not covered. 
 
The Meghalaya High Court went a step further: It took over the power of the executive to impose the AFSPA in the Garo Hills and assaulted the basic tenets of the Constitution on separation of powers between the judiciary and the executive.  The task of the judiciary is to assess whether the legality of the action of the executive on imposition of the AFSPA or any other law, and not to perform the task of the executive, including analysis of the inputs of intelligence agencies on law and order situation, to declare certain areas as disturbed. Unless the state government of Meghalaya or the Ministry of Home Affairs challenges the order of the Meghalaya High Court, the courts in India may as well direct imposition of emergency under Article 356 of the Constitution of India, a common refrain of the opposition political parties in most states.  

The writer is  the Director, Asian Centre for Human Rights.

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